Doe v. The Bd. of Education of Prince George's County

JOHN DOE AND JANE DOE, Individually and as parents and next friends of JD, a minor child, Plaintiffs,v.THE BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, 14201 School Lane Upper Marlboro, Maryland 20772, and KATHLEEN SCHWAB, 9 Research Road Unit C Greenbelt, Maryland 20770, Defendants

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For John Doe, Individually and as parents and next friends of J.D., a minor child, Jane Doe, Individually and as parents and next friends of J.D., a minor child, Plaintiffs: Andrew David Freeman, Sharon Krevor Weisbaum, LEAD ATTORNEYS, Brown Goldstein and Levy LLP, Baltimore, MD; Laura Ginsberg Abelson, LEAD ATTORNEY, Brown Goldstein Levy LLP, Baltimore, MD.

Plaintiffs John and Jane Doe, individually and as parents and next friends of JD, a minor child, bring this action against Defendants Kathleen Schwab and the Board of Education of Prince George's County. Plaintiffs assert a student-on-student sexual harassment claim under Title IX, along with supplemental state law claims for negligence and gross negligence. The following motions are pending before the Court: (1) Defendants' Motion for Summary Judgment; (2) Plaintiffs' Motion for Leave to File Surreply; and (3) Defendants' Motion to Strike Plaintiffs' Surreply. The Parties have fully briefed the matter. Also, the Court held a motions' hearing on October 8, 2013. After carefully reviewing the evidentiary record and the Parties' memoranda, as well as considering the arguments the Parties made at the hearing, the Court GRANTS Defendants' Motion for Summary Judgment; DENIES AS MOOT Plaintiffs' Motion for Leave to File Surreply; and DENIES AS MOOT Defendants' Motion to Strike Plaintiffs' Surreply.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs enrolled their son, JD, in the fourth grade at Robert Goddard Montessori School (Goddard) for the 2008-2009 school year. JD also attended Goddard as a fifth-grader for the 2009-2010 school year. Evidently, JD was nine or ten years old when most of the relevant events occurred. Suzanne Johnson (Johnson) was the principal of Goddard for most of the 2008-2009 school year. Johnson passed away toward the end of the 2008-2009 school year. Defendant Kathleen Schwab was vice principal of Goddard during the 2008-2009 school year. Upon Johnson's death, Schwab apparently served as acting principal for the remainder of the 2008-2009 school year. Then, Schwab served as Goddard's principal in the 2009-2010 school year. JD was assigned to Lisa Jellison (Jellison)'s fourth-through-sixth-grade class for the two years he attended Goddard. A nonparty student, Classmate, was in the same class during both school years. Classmate was one grade ahead of and bigger than JD.

Plaintiffs allege that Classmate started to sexually harass JD in 2008. In the fall of 2008, Classmate allegedly called JD gay at least once. Furthermore, in October 2008, JD told Schwab that " someone had said something to him in the bathroom that was of a sexual nature." Doc. No. 42-5 at 101:13-19. Schwab testifies that, in response, she told JD that the students were supposed to respect each other and instructed him to immediately inform his teacher of any further such incidents. She also states that she informed JD's mother of her conversation with JD. See id. at 101-02.

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In December 2008, in the classroom library, Classmate allegedly exposed himself to JD. Plaintiffs did not inform Schwab of this incident until late January 2009. In response, Schwab documented JD's complaint in a contemporaneous log and reported it to Johnson. Subsequently, pursuant to Johnson's orders, Jellison rearranged her class such that JD and Classmate were as far away from each other as possible and that Jellison had more visibility.

The next instance of sexual harassment occurred on March 11, 2009. On that date, during a classroom dancing exercise, Classmate evidently grabbed JD and made humping gestures toward him. Defendants promptly documented this incident as sexual harassment and gave Classmate a five-day in-school suspension for it. Defendants assert, and Plaintiffs do not contest, that the in-school suspension was served in Johnson's office.

The next instance of alleged sexual harassment occurred approximately nine months later. On December 7, 2009, JD reported that a partially nude Classmate had run into the bathroom and tried to climb into his stall a few days earlier. In response, Defendants interviewed two or three male students, all of whom apparently stated that they did not see JD and Classmate together in the bathroom at the relevant time. Subsequently, JD's father and a security officer watched video surveillance footage of the bathroom's entrance and found no conclusive proof that JD and Classmate were in the bathroom at the same time. Nevertheless, Defendants implemented a sign-in/sign-out procedure intended to ensure that JD and Classmate would not use the bathroom at the same time. Defendants also provided JD with a student escort to the bathroom. Shortly thereafter, JD refused to use the escort service, allegedly because other students teased him about it. After the bathroom stall incident, the record does not reflect that Plaintiffs reported any more incidents of sexual harassment to Defendants.

In the spring of 2010, JD's parents discovered that JD and Classmate had been texting each other. JD's parents had bought him a cell phone with texting capability. Somehow, Classmate obtained JD's number and started sending him text messages, to some of which JD responded. See Doc. No. 37-4 at 67. JD's mother found out that Classmate was in JD's contact list. Although she initially took the phone from him, she gave it back after apparently deleting Classmate as a contact. See Doc. No. 37-9 at 90-91. Later, JD's parents learned that Classmate had sent JD some sexually explicit pictures, possibly of men having sex. See Doc. No. 37-6 at 80-81; Doc. No. 40-10 at 2. Plaintiffs have identified no evidence that Classmate discussed sex acts he had performed on JD in these communications. See Doc. No. 37-4 at 67; Doc. No. 37-6 at 80-81; Doc. No. 37-9 at 90-91. Nor is there any evidence that JD responded to any of these messages.

The final instance of alleged sexual harassment became known in June 2010, after school had let out for the 2009-2010 academic term. Then, the police responded to a report that Classmate had sexually assaulted JD. Specifically, JD reported that Classmate " would corner him in either the library or bathroom at the school and force either oral or anal sex on him." Doc. No. 37-3 at 1. To corroborate this allegation, JD testified that, during his fourth-grade year, Classmate unsuccessfully attempted to force JD to perform oral sex on him in the bathroom. Doc. No. 40-18 at 54:14-21. JD further testified that, at an unspecified point in time during his fifth-grade year, Classmate entered the bathroom, slammed him into the wall,

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pulled his pants down, and performed oral sex on him. See id. at 57:2 - 58:3. Similarly, JD testified that, at some time during fifth grade, Classmate partially inserted his penis into JD's anus when they were in the bathroom. See id. at 77:21 - 78:4. JD concedes that he failed to inform school officials of these alleged sexual assaults. See id. at 56:7-19, 58:15-17, 78:5-11. Likewise, save the June 2010 police report, JD admits that he failed to tell his parents about these incidents. See id.

The Prince George's County Police Department investigated Plaintiffs' report. A doctor performed a sexual assault exam on JD and found no signs of injury. In July 2010, a police detective separately interviewed Classmate and JD. Classmate made a suspect statement in which he alleged that he and JD participated in three sexual encounters. According to Classmate, the first encounter took place in the library during JD's fourth-grade year. During this encounter, Classmate alleges that he and JD slapped each other's buttocks and humped each other with their pants halfway down and underwear up. See Doc. No. 40-10 at 1. The second encounter, according to Classmate, took place in the bathroom next to the resource room. During this encounter, Classmate alleges that he and JD humped each other with their pants and underwear down by placing their exposed penises on or in each other's " butt[s]." See id. at 1-2. During the same encounter, Classmate alleges that he asked JD if JD wanted to suck his penis, to which JD responded affirmatively and proceeded to do. The third encounter, according to the statement, occurred in the bathroom next to the classroom of " Ms. Holmes." Id. at 2. Allegedly, the third encounter was similar to the second inasmuch as JD and Classmate humped each other in the same manner as they had during the second encounter. See id. Classmate does not state when the second and third encounters transpired. Plaintiffs have submitted no affidavit or deposition testimony from Classmate, whether in connection with the suspect statement or for any other purpose.

A police detective interviewed JD in the same month. The detective noted " several inconsistencies" in JD's statements. Doc. No. 37-3 at 3. Eventually, JD stated that his sexual acts with Classmate were " consensual." Id. Based on the detective's findings, the police closed the case as " unfounded." Id. Essentially, JD testified that the acts were nonconsensual and that he lied to the detective out of nervousness, embarrassment, and/or confusion.

Plaintiffs assert that Defendants' alleged failure to protect JD from Classmate's conduct harmed JD. For instance, Plaintiffs declare that JD experienced a recurrence of encopresis, or fecal staining, in February 2010. Although JD had suffered from this condition when he was younger, Plaintiffs contend that it had been in remission for two years and that Classmate's conduct, and the resulting fear of using the school bathroom, caused its recrudescence. Furthermore, both a medical doctor and JD's therapist diagnosed him as having posttraumatic stress disorder (PTSD) as a result of Classmate's harassment. Plaintiffs add that JD's fear of returning to school was so severe that it compelled them to withdraw him from Goddard after fifth grade.

Defendants assert that there is insufficient evidence that their alleged failure to protect JD deprived him of an educational benefit. There is no dispute that JD missed only seven days of school over the two years in question and partook in some activities. These activities included participating in a Model UN Program in which JD traveled to New York City twice and apparently made a speech before hundreds

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of spectators, playing the recorder during music class, and playing tennis after school. Although there is no evidence that JD's academic performance declined over this time, it is undisputed that Goddard is a ...

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